Citation Nr: 0515597
Decision Date: 06/09/05 Archive Date: 06/21/05
DOCKET NO. 04-11 537 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
Entitlement to service connection for bilateral hearing loss.
Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Greg W. Depretto, Sr.
ATTORNEY FOR THE BOARD
Rebecca Feinberg, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1944 to January
1946.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a June 2003 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
FINDINGS OF FACT
1. The competent and probative medical evidence of record
preponderates against a finding that bilateral hearing loss
was present in service or that sensorineural hearing loss was
manifested within one year after service, and any current
hearing loss is not related to service or any incident of
service.
2. The competent and probative medical evidence of record
preponderates against a finding that tinnitus was present in
service or that tinnitus was manifested within one year after
service, and any current tinnitus is not related to service
or any incident of service.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by service, nor may an organic disease of the nervous system
(e.g., sensorineural hearing loss) be presumed to have been
incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,
1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309,
3.385 (2004).
2. Tinnitus was not incurred in or aggravated by service,
nor may an organic disease of the nervous system (e.g.,
tinnitus) be presumed to have been incurred in service.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West
2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran's March 1944 entrance examination indicates his
hearing was 15/15 bilaterally. His January 1946 separation
examination shows his hearing was 40/40 bilaterally with a
watch test, 20/20 bilaterally with a coin click test, 15/15
bilaterally using a whispered voice test, and 15/15
bilaterally on a spoken voice test. Binaural hearing was
noted to be 15/15. No defects or diseases were noted. The
veteran's service medical records show no complaints
regarding his ears or his hearing.
Private treatment records dated from January 1987 to December
2002 show the veteran was diagnosed with bilateral hearing
loss and a tolerance problem, more pronounced on the left.
It was described as long-term. He was given hearing aids.
In a June 2003 written statement, the veteran indicated that
in 1945, while serving in Guam, he was running field duty.
As he was going across a checkpoint, four rifles fired. This
caused the veteran's left ear to bleed, possibly injuring his
inner ear. The Navy medics washed the blood out of his ear
at the time. The veteran indicated that his hearing was not
clear for a week or more after that incident. In the years
since, loud noises affected his left hear, and his hearing
would be affected for a while. He indicated that he also
suffered from "tendonitis" (perhaps he meant "tinnitus")
in the left ear. He had to wear a hearing aid for 35 to 40
years. The veteran also stated that in 1947, he was
hospitalized for other reasons and attempted to file a claim
for his injured ear. He was informed at that time that the
records showing his service were destroyed in a fire.
In a June 2003 written statement, the veteran's daughter
recounted her father's experiences in the military. She
indicated that he had trouble hearing for as long as she
could remember. As the years passed, it became harder for
him to hear. He tried a long time ago to get help from VA
but was told his records were destroyed in a fire. Since it
had been so much time, it was nearly impossible to find
someone to verify his statements.
In June 2003, the veteran underwent VA examination. He gave
a history of military noise exposure from artillery fire
while he was in training in Guam. The veteran indicated that
after separation, he worked for many years for General
Motors. He worked in the assembly line but stated that it
was not particularly noisy. The veteran gave no history of
recreational noise exposure. He also gave a long history of
bilateral constant tinnitus of many years' duration. He said
the severity of the hearing loss and tinnitus progressively
worsened over the past several years. He described his
tinnitus as moderately severe.
On examination, pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
N/A
50
60
60
60
LEFT
N/A
50
60
65
70
Speech audiometry revealed speech recognition ability of 92
percent in the right ear and of 84 in the left ear. The
examiner indicated the veteran had bilateral moderate to
severe sensorineural hearing loss. The examiner's review of
the veteran's claims file and service medical records was
negative for hearing loss and tinnitus while he was on active
duty. Physical examination done at the time of separation
from service had indicated that the veteran's hearing was
normal.
The diagnoses were bilateral moderate to severe sensorineural
hearing loss and bilateral constant tinnitus. The examiner
stated that it appeared most likely that the veteran's
current hearing loss and tinnitus had begun subsequent to his
separation from active service. It was the result of a
combination of genetic and environmental factors, mostly
presbycusis. Therefore, he opined, it was less likely than
not that the veteran's current hearing loss and tinnitus were
related to military service.
In an October 2003 written statement, accepted as the
veteran's notice of disagreement, he indicated that he was
treated in Guam for ear bleeding as a result of loud noise
from rifles firing overhead. He stated that he was not
requesting money compensation. Instead he wanted VA to
provide him with hearing aids.
In a March 2004 statement, accepted as the veteran's
substantive appeal, he indicated that he did not complain
about his hearing loss at the time he was discharged because
he thought it would go away. He had problems with his
hearing through the years, and began wearing hearing aids in
his forties or fifties.
II. Analysis
A. Duty to Notify and Assist
The Veterans Claims Assistance Act (VCAA), Public Law No.
106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code and, among other things, eliminated the requirement of a
well-grounded claim and enhanced the notice and assistance to
be afforded to claimants in substantiating their claims.
VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended
at 38 U.S.C.A. §§ 5103, 5103A (West 2002)). In addition, VA
has published regulations to implement many of the provisions
of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a) (2004)).
The Board is aware that there has been a significant amount
of analysis pertaining to the effective date, the scope, and
the remedial aspects of the VCAA. See, e.g., Mayfield v.
Nicholson, ___ Vet. App. ___, No. 02-1077 (April 14, 2005);
Quartuccio v. Principi, 16 Vet. App. 183 (2002); Kuzma v.
Principi, 341 F.3d 1327 (Fed. Cir. 2003); Paralyzed Veterans
of America v. Secretary of Veterans Affairs, 345 F.3d 1344
(Fed. Cir. 2003) (but see Public Law No. 108-183, § 701, 117
Stat. 2651, 2670-1 (Dec. 16, 2003); Conway v. Principi, 353
F.3d 1359 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet.
App. 112 (2004). See also VAOPGCPREC 11-00 (Nov. 27, 2000);
VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 8-2003 (Dec.
22, 2003); VAOPGCPREC 1-2004 (Feb. 24, 2004).
Given the uncertainty as to the precise application of the
VCAA, exemplified in the authorities cited above, the Board
assumes that the VCAA is applicable to this appeal. We are
aware that in Pelegrini, cited above, the U.S. Court of
Appeals for Veterans Claims stated that, under the VCAA,
the Secretary must provide notice . . . that
informs the claimant of any information and
evidence not of record (1) that is necessary to
substantiate the claim, (2) that VA will seek to
provide, and (3) that the claimant is expected to
provide. Furthermore . . . , in what can be
considered a fourth element of the requisite
notice, VA must "also request that the claimant
provide any evidence in the claimant's possession
that pertains to the claim." 38 C.F.R.
§ 3.159(b)(1); see 38 U.S.C. § 5103A(g) . . . .
Pelegrini, supra, at 121.
The VA General Counsel has issued a precedent opinion
interpreting the Court's decision in Pelegrini. In essence,
and as pertinent herein, the General Counsel endorsed the
notice requirements quoted immediately above, and held that,
to comply with VCAA requirements,
the Board must ensure that complying notice is
provided unless the Board makes findings regarding
the completeness of the record or as to other
facts that would permit [a conclusion] that the
notice error was harmless, including an
enumeration of all evidence now missing from the
record that must be a part of the record for the
claimant to prevail on the claim.
VAOPGCPREC 7-2004 (July 16, 2004).
In a recent case, Mayfield v. Nicholson, supra, the Court
addressed the meaning of prejudicial error (38 U.S.C.A.
§ 7261(b)), what burden each party bears with regard to the
Court taking due account of the rule of prejudicial error,
and the application of prejudicial error in the context of
the VCAA duty-to-notify (38 U.S.C.A. § 5103(a)).
Considering the decisions of the Court in Pelegrini and
Mayfield and the opinion of the General Counsel, the Board
finds that the requirements of the VCAA have been satisfied
in this matter, as discussed below.
In a May 2003 letter, the RO informed the veteran of the VCAA
and its effect on his claims. In addition, the veteran was
advised, by virtue of a detailed January 2004 statement of
the case (SOC) issued during the pendency of this appeal, of
the pertinent law, and what the evidence must show in order
to substantiate his claims. We therefore believe that
appropriate notice has been given in this case. The Board
notes, in addition, that a substantial body of lay and
medical evidence was developed with respect to the veteran's
claims, and that the SOC issued by the RO clarified what
evidence would be required to establish entitlement to
service connection. The veteran responded to the RO's
communications with additional evidence and argument, thus
curing (or rendering harmless) any previous omissions.
Further, the claims file reflects that the January 2004 SOC
contained the new reasonable doubt and duty-to-assist
regulations codified at 38 C.F.R. §§ 3.102, 3.159 (2004).
See Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).
The Board concludes that the notifications received by the
veteran adequately complied with the VCAA and subsequent
interpretive authority, and that he has not been prejudiced
in any way by the notice and assistance provided by the RO.
See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993);
VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it
appears that all obtainable evidence identified by the
veteran relative to his claims has been obtained and
associated with the claims file, and that neither he nor his
representative has identified any other pertinent evidence,
not already of record, which would need to be obtained for a
fair disposition of this appeal. Thus, for these reasons,
any failure in the timing or language of VCAA notice by the
RO constituted harmless error.
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claims, under both
former law and the VCAA. The Board, therefore, finds that no
useful purpose would be served in remanding this matter for
yet more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the veteran. The Court of
Appeals for Veterans Claims has held that such remands are to
be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en
banc), vacated on other grounds sub nom. Winters v. Gober,
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994). In fact, the Court has stated, "The VCAA is a
reason to remand many, many claims, but it is not an excuse
to remand all claims." Livesay v. Principi, 15 Vet. App.
165, 178 (2001) (en banc).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2004).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
B. Bilateral Hearing Loss and Tinnitus
Pursuant to 38 U.S.C.A. §§ 1100, 1131; 38 C.F.R. § 3.303(a),
a veteran is entitled to disability compensation for
disability resulting from personal injury or disease incurred
in or aggravated by service. In addition, the law provides
that, where a veteran served ninety days or more of active
military service, and sensorineural hearing loss or tinnitus
becomes manifest to a degree of 10 percent within one year
from the date of termination of such service, such disease
shall be presumed to have been incurred in service, even
though there is no evidence of such disease during the period
of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West
2002); 38 C.F.R. §§ 3.307, 3.309. While the disease need not
be diagnosed within the presumption period, it must be shown,
by acceptable lay or medical evidence, that there were
characteristic manifestations of the disease to the required
degree during that time. Id.
The veteran contends that he currently suffers from bilateral
hearing loss and tinnitus, which are related to his period of
active duty service. Certainly, the veteran's private
medical records and VA examination show he has current
bilateral hearing loss and tinnitus disorders. However, in
order for the disorders to be service connected, there must
also be a relationship between them and the veteran's period
of military service. As described below, none of the
evidence associated with the veteran's claims file shows a
link between his military service and his current bilateral
hearing loss and tinnitus.
The Board notes that while the veteran has stated that he
underwent treatment for a bleeding left ear while in service,
his service medical records do not show evidence of this
incident. We are aware that records may have been lost or
destroyed over the years, and we have no reason to doubt the
veracity of the veteran's assertions. Where there is the
possibility that previously existing service medical records
are now unavailable, there is a heightened obligation to
explain our findings and conclusions, and to consider
carefully the benefit-of-the-doubt rule. O'Hare v.
Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski,
2 Vet. App. 83, 85 (1992).
It must be acknowledged, however, that the veteran's
separation examination, conducted in January 1946, shows his
hearing was normal on several different tests. Indeed, the
earliest medical evidence associated with the veteran's
claims file is dated in 1987, more than forty years after his
separation from service. Even evaluating the evidence in the
light most favorable to the veteran, he stated that he began
wearing hearing aids in his late forties or early fifties.
While there is no medical evidence of record for this
treatment, the Board notes that this would still have
occurred at least ten years after the veteran's military
service ended. Finally, and most important, the only medical
opinion of record, that of the June 2003 VA examiner, stated
the professional opinion that it is unlikely that the
veteran's current hearing loss and tinnitus were related to
his military service, but that they are likely due to post-
service factors and the aging process.
While the veteran has stated that he underwent treatment in
service for his left ear and did not complain about his
hearing loss upon separation because he believed it would
resolve itself, the Board notes that we can only render a
decision based on the evidence that is in the record. We
cannot speculate as to the possible diagnoses the veteran did
or would have received if records were made.
The Board recognizes that the veteran believes that his
bilateral hearing loss and tinnitus are related to his
military service. His sincerity is not in question.
However, while the veteran is certainly capable of providing
evidence of symptomatology, a layperson is generally not
capable of opining on matters requiring medical knowledge,
such as the degree of disability produced by the symptoms or
the condition causing the symptoms. See Robinette v. Brown,
8 Vet. App. 69, 74 (1995); Heuer v. Brown, 7 Vet. App. 379,
384 (1995); Espiritu v. Derwinski, 2 Vet. App. at 494 (1992).
See also Harvey v. Brown, 6 Vet. App. 390, 393-94 (1994).
As the evidence preponderates against the claims for service
connection for bilateral hearing loss and tinnitus, the
benefit-of-the-doubt doctrine is inapplicable, and the claim
must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra.
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs